A commentary on rabbinic texts and toxicality

November 23, 2005

Tenafly NJ was home to a big communal and legal brouhaha over a proposed eruv. The eruv was proposed on June 1, 1999 and, once installation of the ritual boundary was underway in fall 2000, the eruv was opposed by the Borough of Tenafly. The lawsuit wound its way through U.S. federal courts, the eruv supporters won in the U.S. Court of Appeals (pdf file), and a final appeal was denied by the Supreme Court. Is it discriminatory for a government to deny Jews the opportunity to set up a ritual eruv? Does it violate the Establishment Clause for a municipality to authorize and assist an eruv?

At the Jewish Law website, you can read amicus curiae briefs by the Orthodox Union (joined by ADL, RCA, AJC, Hadassah, Reform Judaism) and Agudath Israel. The site also mentions two previous cases: Smith v. Community Bd. No. 14, 491 NYS2d 584, 128 Misc2d 944 (S.Ct. Queens County, 1985) and ACLU of New Jersey v. City of Long Branch, 670 F. Supp 1293 (D.N.J. 1987). Background on Tenafly for the media, with many good links. An atheist's brief recap and comment on the Tenafly case.

SUMMARY (courtesy of Lexis): ... This comment uses the creation of an eruv, the name of this procedure, as a case-study to display the ambiguities of current First Amendment law and the need for more specific guidance from the Supreme Court on what the Establishment Clause permits and forbids and what the Free Exercise Clause requires. ... An eruv should also pass Establishment Clause scrutiny even if it is considered speech, and no other groups are permitted access to the forum since it passes the Lemon and endorsement tests even if there is no additional purpose of complying with the Free Speech Clause. ... If a restriction on an eruv fails the reasonableness test that would most likely be applied if a wide variety of groups are denied access and restrictions on other forms of speech do not, permitting an eruv is not "preferential," but neutral. ... Since an eruv would almost always be less obtrusive than any other request, a city cannot permit other groups to have access, and deny access to eruv seekers on the grounds that its ordinance is narrowly tailored to the compelling interest of avoiding visual clutter and maintaining control over city property. ... " In Lukumi, the Court noted that the Free Exercise Clause protects against governmental hostility which is "masked as well as overt. ...

The general applicability test puts center stage the existence of secular exceptions (and thus the existence of secular burdens) in determining whether a religious claimant should get an exception. ... Other cases, such as Tenafly Eruv Association, Inc. v. Borough of Tenafly n90 and Rader v. Johnston, n91 also expose the role that demographic factors can play in exemption analysis. In the Tenafly case, a group of Orthodox Jewish residents sought permission to attach lechis, which are thin black strips of plastic, along neighborhood utility poles. In doing so, the residents were attempting to create an eruv, a ceremonial demarcation of a particular area. Creating an eruv allows Orthodox Jews, who are usually forbidden from pushing or carrying objects outside their homes on the Sabbath, to conceive of the entire space within the eruv as their home. Without an eruv, Orthodox Jews who have small children or who are disabled cannot attend synagogue on the Sabbath. n92 The Third Circuit granted the residents a preliminary injunction against enforcement of an ordinance forbidding signs on public places because the rule was not enforced in a generally applicable manner. The Third Circuit relied upon the fact that, among other exceptions, the Borough had allowed orange ribbons to remain on utility poles during a controversy over school regionalization and the fact that residents often nailed their address number signs to utility poles. n93 As these exceptions were necessary to the result, the clear implication is, of course, that if the Orthodox Jews had lived in a community where people posted their address numbers over their doors and where the school district was not embroiled in political controversy, the Orthodox Jews living there would have no right to an eruv. n94 (n94 I must confess that this discussion oversimplifies the case in Tenafly. The Borough made several other exceptions to the rule; it permitted local churches to post permanent directional signs, residents to post lost animal signs, and the local Chamber of Commerce to affix holiday displays. Id. at 151-52. My point, however, remains. All of the secular exceptions seem traceable to idiosyncratic factors about the Borough of Tenafly that may not exist in other communities. It seems instinctive to question the sense of an exemption system that makes religious claimants' rights contingent on such factors.)

NOTE: The Utility and Efficacy of the Rluipa: Was It a Waste? (31 B.C. Envtl. Aff. L. Rev. 723) by SARA SMOLIK

The Appeals Court found that the association could not sustain its claim that the ordinance infringed on its free speech rights. n216 The association argued that the lechis that marked the eruv's boundaries were so innocuous that even members of the Tenafly Orthodox community[*751]would not be able to recognize them for what they were; rather, knowledge of the eruv and its boundaries would be passed by word of mouth. n217 Because of this, the court determined that the act of affixing lechis to the utility poles was not "sufficiently imbued with elements of communication to be deemed expressive conduct" worthy of protection under free speech jurisprudence. n218 The court concluded that, in the absence of evidence that such demarcations convey an "attitude or belief," geographical boundary lines, like the eruv or fences and walls, were not expression protected by the First Amendment. n219

In reaching this holding, the Tenafly Eruv court was obviously concerned with the implications of making it easier for plaintiffs bringing free exercise claims to allege an infringement of hybrid rights. n220 The court expressed concern that, by analyzing the construction of an eruv under the Free Speech Clause, it would set a precedent that would easily allow plaintiffs and courts to side-step the essential holding of Smith. n221 "Moreover, if solely the act of erecting a wall separating the interior of a building from the secular world constituted 'speech,' every religious group that wanted to challenge a zoning regulation preventing them from constructing a house of worship could raise a 'hybrid' rights claim triggering strict scrutiny." n222 Commentators have expressed similar concerns that Smith's exemption for hybrid rights threatens to swallow the rule it creates. n223

Since the Talmudic daf yomi readings are deep into the Jewish practice of eruv*, this post provides a range of useful links. You are welcome to add links through the comments page.

To my readers: Due to my temporary break from new posts, a few readers kindly suggested that I leave at least a note about the status of this blog. It is my intention to improve and add to this Quicksilver blog, but I am currently pulled away to other compelling work. Apologies for not mentioning this break before. I will try to add some new posts between now and mid-January, when I hope to resume on a more regular basis. (If anyone would like to offer a guest post that fits within the scope of this blog, you would be most welcome. Send me an email.) Now, back to Eruvin:

Links about eruv (draft):

For a general guide to the topic of eruv and a long list of websites for eruvim in various communities, see Wikipedia's eruv article.

Eruv Online is a blog that promotes eruv. The posts usually assume a high level of knowledge but the blog opens with a crisp social critique: "

Eruvin is different then other halachic issues in one significant aspect. Eruvin more than any other issue vests a certain amount of centralized power to the baal ha’machsher [the authority who certifies the eruv as valid -- Kaspit]. People publicly carrying in a rav’s eruv is a clear sign of the posek’s influence and support in the community, unlike relying on the rav’s hechsher on food, which is a more private matter. Consequently, there are people who find it incumbent upon themselves not to allow an eruv to be established, and insist that their rav’s opinion is the only one that can be followed. If one were to follow the history of eruvin in cities where there was no central governing rav or Bais Din, they would find that machlokas [controversy -- K] often erupted as a result of this desire for dominance in community affairs [Krakow 1888, St. Louis 1895, Odessa 1900, New York 1905 to the present, Manchester 1906, Frankfurt am Main 1914, and London 1932 to the present]. Otherwise, eruvin would generate the same level of reaction as say a mikveh [Jewish ritual bath -- Kaspit] where every individual just follows the p’sak of his own rav.

I do think eruv has a range of interesting halakhic and cultural-political features, which I hope will be discussed here.

Kol tuv,

Kaspit

* An eruvis a ritually designated enclosure, a symbolic wall or fence that marks off an area in which some sabbath prohibitions on carrying do not apply. An eruv is an example of a legal fiction in Jewish law.